In a TV interview following his decision to withdraw his consent to be appointed judge of the Supreme Court under controversial circumstances, senior advocate Gopal Subramanium remarked, ''Gopal Subramanium is completely irrelevant to the issue...'' The decision by the president to appoint three candidates recommended by the collegium for Supreme Court judgeship and not appoint him, the collegium's fourth recommendation — on seemingly flimsy grounds if leaked reports are to be believed — has led to severe criticism of the government for compromising the independence of the judiciary.

But as Subramanium rightly pointed out, the manner of his non-appointment raises larger concerns. These involve revisiting the consultative process prior to the appointment of a judge, from whose loopholes much of this controversy stems.

The responsibility for formulating and controlling this process lies with the Supreme Court. The ill-conceived creation of the collegium by an apex court in the Second Judges' Case (1993), the opacity of its functioning and the hubris of the judiciary in considering itself the sole guardian of judicial independence in India are chief culprits for a process that is indefensible as a matter of constitutional law and shrouded in uneasy secrecy in practice.

The formulation of the consultative mechanism, as it operates today, was not intended by the Constitution's drafters. Appointment of judges was envisaged as an executive function; the Chief Justice of India, as an apolitical authority, would have a consultative role. In fact, B R Ambedkar went as far as to say that consultation with the CJI should not be viewed as requiring his concurrence since that would give him a veto over appointments.

However, given the history of executive assertion of its role in appointments during the Emergency and insidious interference thereafter, the Supreme Court in the Second Judges' Case arrogated the power of appointing judges to itself. The argument for a more significant role for the judiciary in appointments may have been justified by the exigencies of the time. But the manner of such arrogation is the core reason for the unsatisfactory operation of the collegium process of appointment, as palpably demonstrated in the latest episode.

The creation of the collegium was an act of judicial law-making. Not only is there no warrant for creation of a collegium in Article 124 of the Constitution that governs judicial appointments to the Supreme Court, but the decision also turned the envisaged consultative process on its head — the consultee, the CJI, along with a colle-gium of senior justices would now have primacy in all judicial appointments; the executive would henceforth act as a glorified clearing-house for the collegium's recommendations. This is a reading unsupported by any known canon of constitutional interpretation.

Its meaning and import was clarified in the Third Judges' Case (1998) which specified the size of the collegium and outlined the procedure to be followed. This judgment is even more remarkable. Written almost like a policy brief, it conspicuously lacks any semblance of legal reasoning. Its result has been to establish by judicial diktat its own supremacy over appointments, killing any genuine consultative element bet-ween collegium and executive in appointment procedure. Demise of consultation together with lack of alternative checks and balances on the collegium has led to two perverse consequences.

First, it has given rise to a simplistic binary of the judiciary being at the vanguard of judicial independence protection, with the executive viewed as an inveterate adversary. While experience may have justified this to an extent, elevating it to the level of dogma is simply hubristic. The judiciary is thus unsurprisingly reaping what it sows.

Second, such hubris has resulted in a complete dereliction of norms of transparency in functioning and accountability for choices made by the collegium. No published criteria are followed by the collegium for choosing judges, little is known about shortlisting procedures and no reasons are communicated for its decisions.

This opacity has time and again resulted in questionable choices. Those critical of the government for not accepting Subramanium's recommendation would be well-served in recollecting certain past episodes. Justice A P Shah, a man of erudition, was never appointed to the Supreme Court for inexplicable reasons; Justice A K Patnaik, a fine judge, had his elevation curiously delayed; and most egregiously Justice P D Dinakaran was recommended for Supreme Court judgeship despite facing severe questions about his integrity. In all these instances it was the collegium and not the government which exercised its choice, seemingly for extraneous reasons.

None of this absolves the government of accountability if indeed it has acted mala fide in not processing Subramanium's recommendation. However, to speculate solely on the government's intentions as most have done, would be to miss the wood for the trees.

Consultative processes are founded on the possibility of disagreement; such disagreement is an effective check on the prejudices of any single functionary. In establishing a process that allows no genuine room for disagreement, the Supreme Court propounded a mechanism for appointments that is unjustifiable as a matter of constitutional law and counterproductive in practice. If there is one key lesson that emerges from the Subramanium episode, it is to reform the mechanism for judicial appointments that makes the process genuinely participatory — unlike the charade that passes in the name of constitutional law today.

(The writer is founder and research director, Vidhi Centre for Legal Policy.)